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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Crest Nicholson Operations Ltd & Ors v West Berkshire District Council & Ors  EWHC 289 (Admin) (12 February 2021)
Cite as:  EWHC 289 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) Crest Nicholson Operations Limited
(2) Hallam Land Management Limited
(3) Wilson Enterprises Limited
|- and –
|West Berkshire District Council
- and -
(1) AWE Plc
(2) The Secretary of State for Defence
(3) Public Health England
(4) Office for Nuclear Regulation
Mr Travers QC and Ms Thomas (instructed by West Berkshire District Council) for the Defendant
Mr Strachan QC (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the First Interested Party
Mr Blundell QC and Ms Blackmore (instructed by Government Legal Department) for the Second Interested Party
Mr Westmoreland Smith (instructed by Government Legal Department) for the Fourth Interested Party
Hearing dates: 15 - 16 December 2020
Crown Copyright ©
The Hon. Mrs Justice Thornton
How the Regulations work
How the DEPZ is designated
"3. The calculations undertaken in support of the assessment must consider a range of weather conditions (if weather conditions are capable of affecting the extent of the impact of the radiation emergency) to account for –
(a) the likely consequences arising from such conditions; and
(b) consequences which are less likely, but with greater impact.
"(a) the proposed minimum geographical extent from the premises to be covered by the local authority's off-site emergency plan; and
(b) the minimum distances to which urgent protective action may need to be taken, marking against each distance the timescale for implementation of the relevant action.
3. In relation to a minimum geographical extent recommended under paragraph 2, the operator must also include within the consequences report –
(a) the recommended urgent protective actions to be taken within that zone, if any, together with timescales for the implementation of those actions; and
(b) details of the environmental pathways at risk in order to support the determination of food and water restrictions in the event of a radiation emergency."
"4. The operator must set out the rationale supporting each recommendation made in the consequences report.
5. In particular, the operator must set out –
(a) the rationale for its recommendation on the minimum distances for which urgent protective action may need to be taken;…"
"The local authority must determine the detailed emergency planning zone on the basis of the operator's recommendation under paragraph 2 of Schedule 4 and may extend that area in consideration of –
(a) local geographic, demographic and practical implementation issues
(b) the need to avoid, where practicable, the bisection of local communities; and
(c) the inclusion of vulnerable groups immediately adjacent to the area proposed by the operator."
The provision of information to the public
1. Basic facts about ionising radiation and its effects on the environment;
2. The various types of radiation emergency identified and their consequences for the general public and the environment;
3. Protective action to alert, protect and assist the public in the event of an emergency;
4. Appropriate information on protective action to be taken by the general public in the event of a radiation emergency;
5. The authorities responsible for implementing the protective actions;
6. The extent of the detailed emergency planning zone.
"Where a report is made pursuant to regulation 7, the local authority must make that report available to the public as soon as reasonably practicable after it has been sent to the regulator under that regulation (except that, with the approval of the regulator, the local authority must not make available any part or parts of such report for reasons of industrial, commercial or personal confidentiality, public security or national security)."
Approved Code of Practice and Guidance
"Evaluating a low likelihood for a radiation emergency to occur should not be used as a reason for discounting the hazard from having the potential to cause a radiation emergency. Operators should consider the possibilities for radiation emergencies with extremely low likelihoods but with significant or catastrophic consequences." (§ 85)
"653 PHE's analysis... of the effect of sheltering on inhalation exposures shows a typical dose reduction factor (DRF) of approximately 0.6 (derived on the basis of a combination of modelling and literature review). This value assumes an inhalation dose to an individual sheltering during the entire passage of the plume, until both the indoor and outdoor air concentrations fall back down to zero (or close to it), with no opening of windows and doors to the external environment. Under such circumstances it may be assumed that the DRF remains constant irrespective of the release duration…. The fraction of the dose that is averted is therefore 1 – DRF = 0.4 which implies that the distance where the lower ERL for sheltering of 3 mSv is at the distance where the outdoor effective dose is 7.5 mSv (i.e. 3 mSv divided by 0.4.). For premises where inhalation is the dominant exposure pathway (other than operating reactors), this outdoor effective dose of 7.5 mSv can be used as a surrogate for identifying the initial candidate minimum distance for the urgent protection action of sheltering…"
"656 Once the technical assessment described in the paragraphs above is complete, the operator may wish to exercise judgement to adjust the candidate distances for the urgent protective actions calculated by taking into account:
(a) in the case of releases, the range of weather conditions assumed and their likelihood;
657 Once these have been considered, the operator should recommend the distances for each of the relevant urgent protective actions, justifying any assumptions and judgments that are made. The minimum distance of the urgent protective action is usually taken as a radial distance in kilometres (km)."
"190. The detailed emergency planning zone must be based on the minimum geographical extent proposed by the operator in the consequences report and should:
(a) be of sufficient extent to enable an adequate response to a range of emergencies; and
(b) reflect the benefits and detriments of protective action by considering an appropriate balance between;
(i) dose averted; and
(ii) the impact of implementing protective actions in a radiation emergency across too wide an area.
191 In defining the boundary of a detailed emergency planning zone, geographic features should be used for ease of implementing the local authority's off-site emergency plan. Physical features such as roads, rivers, railways or footpaths should be considered as well as political or postcode boundaries, particularly where these features and concepts correspondence with other local authority emergency planning arrangements."
"... The local planning authority should only change that area [recommended by the operator] to extend it because of local geographic, demographic and practical implementation issues, the need to avoid bisecting communities or to include vulnerable groups at the outer limit of the area. The local authority is not required to have the expertise to verify the technical basis for the minimum extent set by the operator."
"To determine the boundary of the detailed emergency planning zone, the local authority may adopt an approach as follows:
(a) review the consequences report provided by the operator;
(b) consider the most appropriate means of protection of the local population in relation to the types of radiation emergency identified by the operator;
(c) produce proposed detailed emergency planning zone maps based on the consequences report, current planning arrangements and local geographic, demographic and practical implementation issues identified; and
(d) liaise with relevant organisations to identify any issues or improvements to the detailed emergency planning area boundary/boundaries (for example emergency responders, experts in emergencies and responses, regulators, PHE, operator, adjacent local authorities). Existing local forums and liaison committees already set up to discuss emergency arrangements could be utilised for this purpose.
Relevance of the EU regime and applicability of REPPIR to defence activities
The Consequences Report
"….is the largest distance determined by detailed consequence assessment of a range of source terms and includes consideration of a range of weather conditions and vulnerable groups within the population… It is recommended that people are instructed as soon as is practical to immediately take cover in a suitable building and to stay inside with the windows and doors shut."
"Category F weather conditions typically has an associated mean wind speed of 2ms-1. There will be an average of 25 minutes from the initiation of the event until the leading edge of any plume travels to the minimum distance recommended for urgent action. Given the need to notify the Local Authority of an incident in practice this will amount to 10 minutes to inform the public and for the public to find suitable shelter in order to realise any substantive benefit from the sheltering action."
"For the majority of fault sequences, the material released would be in the form of fine particulates of plutonium oxide and the predominant exposure pathway to individuals outside the Burghfield Site during the passage of the plume would be inhalation."
"1) Regulation 7(3) Schedule 4, paragraph 4 – The rationale supporting each recommendation made
a. The release of radioactive particles small enough to be respirable have the potential to result in radiological doses to the public from a range of exposure routes, most notably:
i. First-pass inhalation of air from the plume of contamination;
ii. Long-term inhalation after resuspension of ground contamination by the initial plume;
iii. Ingestion of food crops contaminated by the initial plume;
iv. Long-term external irradiation from ground contamination by the initial plume.
b. It has been assessed that the first-pass inhalation dose is the most significant by far, for initial emergency response purposes, which has resulted in the recommendation to shelter as the most appropriate urgent protective action. This should be coupled with a restriction on the consumption of all locally produced food, until the direction of the plume and the extent of the contamination has been fully investigated, examined and understood. Appropriate local instructions should then be made available to the public based on the prevailing conditions.
c. The recommendation for the minimum emergency action distance at the Burghfield Site originates from the Consequence Assessment carried out under REPPIR 2019. The guidance set out in the Approved Code of Practice is to use the largest candidate distances recommended for the urgent protective actions identified against the lower Emergency Reference Level. This 3160m distance is selected as the minimum geographical extent of the Detailed Emergency Planning Zone (see appendix C for definition) about the Burghfield Site Centre Location.
d. This distance has increased from the REPPIR 2001 ONR determination. The REPPIR 2001 determination was based on a 5mSv dose contour using 55% Cat D weather conditions. Under REPPIR 2019, the minimum distance for urgent protective actions is based on a 7.5mSv dose contour. However, in accordance with the new requirements of REPPIR 2019, the 'reasonable foreseeability' argument is no longer allowed, and several different requirements have had to be taken into consideration, these being that the assessment must:
i. Consider age, and other characteristics which would render specific members of the public especially vulnerable;
ii. Include all relevant pathways;
iii. Consider a representative range of source terms;
iv. Consider a range of weather conditions to account for consequences that are less likely, but which have greater consequences.
e. A further consideration is the geographical area around the site and the potentially significant period that these adverse weather conditions could be experienced.
f. AWE has analysed the dose from a range of weather conditions and has decided to base its proposal on a weather category that is less likely, but which could provide significantly greater doses. Consideration of less likely weather categories, which occur around 12% of the time in the local geographical area, increases the 7.5mSv dose contour to 3160m around the site centre location.
2) Regulation 7(3) Schedule 4, paragraph 5(a) – the rationale for its recommendation on the minimum distances for which urgent protective action may need to be taken:
a. The minimum distance is established from the guidance provided in support of the Regulations, for the appropriate source terms, and is based on the requirement to identify a distance that has the potential to deliver a 3mSv dose saving, when adopting the recommended urgent protective action; which in this case is sheltering.
3) Regulation 7(3) Schedule 4, paragraph 5(b) – The rationale for agreement that no off-site planning is required:
a. Given the content of this Consequences Report, this requirement does not apply to the Burghfield site."
|27 March 2019||REPPIR Regulations are laid in Parliament (also in March, government funding for a study into the suitability of the Claimants' land for a 'garden town' is confirmed)|
|26 April 2019||ONR writes to all nuclear site license holders, including AWE, informing them of actions required under REPPIR 19 during the 12 month transition period|
|22 May 2019||REPPIR 19 comes into force|
|17 July 2019||West Berkshire District Council attends a workshop on REPPIR organised by the ONR|
|31 July 2019||At a meeting between the ONR and AWE, AWE provided details of its Hazard Evaluation and Consequence Assessment, prepared pursuant to Regulations 4 and 5 REPPIR, to ONR Inspectors|
|10 September 2019||AWE presents its assessments and recommendation in the draft Consequences Report to ONR Inspectors at a second meeting. The selection of weather conditions in the assessment is discussed|
|26 September 2019||AWE meets with two other UK nuclear site license organisations to discuss AWE's REPPIR methodology|
|1 October 2019||AWE and ONR have a further discussion about the weather conditions used in the assessment in view of the significance of the selected weather conditions in the proposed expansion of the DEPZ at Burghfield. A number of more senior individuals attend this conference including ONR's Fault Analysis Professional Lead and AWE's Head of Nuclear Safety|
|23 October 2019||AWE and the Council met to discuss the completion of the Hazard Evaluation, Consequences Assessment and Consequences Report|
|20 November 2019||Consequences Report is finalised and sent to the Council|
|21 November 2019||AWE sends the Consequences report to the ONR|
|23 December 2019||The Council notifies Wokingham Borough Council and Reading Borough Council of the details of the Consequences Report|
|6 January 2020||A meeting is held between the Council, AWE, Public Health England (PHE) and the ONR. The Consequences Report and proposal for new DEPZ are discussed. The minutes of the meeting emphasise the notable increase in the DEPZ, which is explained and discussed. Concerns about the increase are expressed by local emergency responders present at the meeting. The Claimant's housing project is specifically raised and discussed.|
|6 January 2020||A specialist ONR Inspector inspects the Hazard Evaluation and Consequence Assessment at AWE's site via the company's on-site secure computer network (this was part of the ONR's sampling exercise which had selected the Burghfield designation for review).|
|7 January 2020||PHE sends questions on the Consequences Report to AWE. In particular, PHE raised questions about AWE's choice of weather conditions|
|9 January 2020||AWE answers PHE's questions by email|
|10 January 2020||PHE issues a statement on its assessment of AWE's work concluding that West Berkshire District Council should consider implementing the minimum distance of 3160 metres radially for the Burghfield site|
|27 January 2020||ONR sends the Council an email to ensure that the Council had considered and followed the ACOP/Guidance|
|30 January 2020||AWE answers questions posted by ONR|
|18 February 2020||A meeting is held between the Council, ONR, Wokingham Borough Council, the MOD and AWE. The minutes record that Wokingham Council were particularly concerned about the impact of the DEPZ on the Claimants' development project. The minutes conclude that: 'This meeting underlines the importance of ONR's presence at meetings such as this to provide independent advice and clarification of the legal requirements which will support the duty holder's (West Berkshire District Council) endeavours to achieve compliance within the tight timescales'|
|February 2020||The ONR completes its assessment of AWE's work, concluding that 'the technical extent of the DEPZ given to the local authority for the AWE site is a reasonable basis for detailed radiological emergency planning purposes'|
|4 March 2020||The Defendant's officers prepare a report on the DEPZ for the Council's Corporate Board|
|19 March 2020||The report is presented to the Defendant's Operations Board. After the board meeting, the determination of the DEPZ is made by an Officer using delegated powers and implemented the same day|
|24 March 2020||The Claimants became aware of the proposal for the increased DEPZ|
|24 March 2020||The Consequences Report is requested by the Claimants|
|24 April 2020||Pre-action protocol letter is sent|
|14 May 2020||AWE respond to the pre-action letter|
|1 June 2020||ONR responds to the pre action letter stating that 'under [REPPIR] the Local Authority now sets Detailed Emergency Planning Zones. The ONR played no part in the decision under challenge'|
|2 June 2020||The Claimants' solicitors write to the ONR asking the ONR to "clarify what the ONR's role is in the process that led to the determination of the DEPZ for the Burghfield AWE, given the role clearly ascribed to the ONR by the other parties to this matter?"|
|5 June 2020||The ONR responds to a second letter from the Claimants stating: "We refer you to [REPPIR] and in particular Regulation 8 which sets out the requirements in relation to detailed emergency planning zones. This regulation confirms that the Local Authority determines the detailed emergency planning zone and does not require the involvement of ONR."|
|11 June 2020||Claim issued|
|1 July 2020||ONR reviews the Council's determination of the DEPZ set by the Council and confirm the Council's analysis and procedure were compliant with Regulation 8 of REPPIR 2019|
|10 July 2020||ONR Acknowledgment of Service states that: "The Office for Nuclear Regulation ("ONR") is a regulator as set out in regulation 2 of the Radiation (Emergency Preparedness and Public Information) Regulations 2019 ("REPPIR"). ONR indicated at the pre-action stage that they did not play a role in the decision currently being challenged, since they are not part of the determination process. Therefore, with respect, the ONR wish to remain neutral and do not wish to play an active role in court proceedings"|
|21 July 2020||Permission is granted by Lieven J with the observation that "On ground two, the role of ONR in the decision making process is not clear from the documents that have been submitted to the court. It is arguable that there was not the regulatory oversight required by REPPIR 2019"|
|17 November 2020||Claimants' make an application for disclosure of the Hazard Evaluation and Consequence Assessment|
The ONR and PHE's assessment of AWE's work
"Based on the information provided by AWE in the Consequences Reports for the Aldermaston and Burghfield sites and the supplementary information provided by email, PHE believes that West Berkshire Council should consider adopting the recommendations of retaining the existing DEPZ distance for the Aldermaston site and implementing the minimum distance of 3160 metres radially for the Burghfield site with sheltering in both cases being the protective action."
"… I am content that the hazard evaluation report… presents a comprehensive list of hazards…Overall I am content that, the process followed by AWE in evaluating hazards adequately follows that described in the REPPIR ACoP and guidance document.
The minimum recommended extent of the proposed DEPZ is 3.16km where previously a distance of approximately 1.0km was proposed. AWE have stated (at Ref 3) that the expansion of the DEPZ is mainly due to the use of Category F weather conditions in the plume dispersion analysis where previously Cat D conditions were used. AWE assert that low dispersion Cat F weather conditions arise relatively frequently at their inland site (approximately 12% of the time) and so they have chosen to assess sensitivities across weather conditions A-F, AWE consider this to be consistent with the provisions of Schedule 3(3). I am satisfied that this change of conditions forms a reasonable basis for the change in DEPZ.
The AWE was assessed by ONR in 2018 against REPPIR01 (Ref 9). The bounding fault for determination of the DEPZ has remained the same in the latest assessment, however the proposed zone is expanded because lower dispersion weather conditions are now considered. Given the relatively high assessed frequency of the lower dispersion conditions I am satisfied that consideration of such conditions is consistent with Regulation 9(1) of REPPIR 19.
Overall, subject to confirmation of the technical adequacy of the consequence analysis by the ONR radiological consequence inspector, I judge that the technical extent of the DEPZ given to the WBCC local authority for the AWE site in the REPPIR 19 submission is a reasonable basis for detailed radiological emergency planning purposes."
The Claimants' evidence about the Consequence Report
"… From the Consequence Report, it cannot be established how the DEPZ in this case was selected at 3160m. There is simply insufficient information or analysis to constitute or to come close to constituting a rationale.
The document does not present the conclusions of the Consequence Assessment performed as part of the new methodology. It only provides the output of that Assessment. The Consequences Report makes no mention of the frequency of the fault upon which it has based its recommended distances via the regulation 5 assessment. This is an important issue which appears in part to be based on a misunderstanding of the approach required by REPPIR 2019 to infrequent faults.
AWE might well have selected a source term based on an event that is too infrequent to require detailed planning according to the new methodology. If this is the case then on the new methodology which is meant to bring consistency and transparency, AWE's proposed minimum DEPZ range and protective actions are larger than is appropriate under REPPIR 2019 and the Guidance".
AWE's evidence on preparation of the Hazard Evaluation, Consequence Assessment and Consequences Report
"A specification was written to support the mathematical modelling of the dispersion associated with some of the events under assessment and the work was undertaken by members of the project team with specialist skills in this type of modelling work."
"55% Category D Weather is the weighted average weather conditions for the geographical area in which the site is located. To understand the potential dispersion of contamination, a variety of weather conditions were analysed. The output from the mathematical modelling provided details of the weather dispersion properties as a result of the analysis of Category A, Category D and Category F weather.
Category F and Category G weather (when compared to 55% Category D) will have the effect of extending the distance over which any contamination from a radiation emergency could have an effect. Category F and Category G weather conditions combined, are experienced around 12% of the time at the site. Category F weather is
experienced around 10% of the time at the site.
Based on the need to consider conditions that 'are less likely but which could result in greater consequences', Category F weather was used to determine the Urgent Protective Action radial distance around the site, because of the greater consequences to the public. This aligned with the guidance from PHE (PHE CRCE 50 – Consequences Assessment Methodology) which required the 95th percentile of weather conditions to be considered.
The nature of the events being analysed made the likely duration of a release short, but this was considered along with the period within which it was likely to commence and the periods over which the release of radioactive contamination could take place. These results, along with an understanding of the distribution in public areas of the contamination and the prevailing weather conditions, allowed the calculation of the averted dose estimate and the total residual effective dose for members of the public.
The most likely travel time for the released contamination to first reach the limits of the minimum boundary of the DEPZ for Category F weather was also predicted.
Using the output from the Consequence Assessment, I instructed geographical maps of the local area to be prepared to illustrate the extent of the distances calculated."
The ONR's evidence about its regulatory role
Wider regulatory role
"…whilst ONR no longer has a statutory role in the determination process for detailed emergency planning zones…we remain committed to assisting you in navigating the revised processes required by these regulations and in particular during the statutory implementation period running to 22 May 2020."
"However, in accordance with its wider regulatory and enforcement responsibilities… the ONR samples a select number of submissions from duty holders to determine whether there is ongoing compliance with REPPIR19. The ONR's sampling approach will take into account: the level of confidence the ONR has in the duty holder's process for producing safety submissions; the risks and hazards associated with the activities covered by the safety submission; and recent events or operating experience at the facility, or similar facilities.
If the ONR determines as part of their sampling exercise that there has been non-compliance with REPPIR19 by a duty holder, they have a wide range of enforcement powers available to them."
Review of AWE's assessments for Burghfield
"The ONR held a follow-up meeting in September 2019 to review AWE's deliverables prior to the expected date for submission of its Consequences Report to WBC. During this meeting AWE informed the ONR that the recommended DEPZ for the Burghfield site would be significantly expanded... The ONR inspectors queried the reasons for this change and AWE indicated that the change was predominantly due to the analysis of infrequent weather conditions in the Hazard Evaluation and Consequence Assessment. It was evident from the "risk matrix" presented to the ONR at the meeting that the accident forming the basis for the proposed DEPZ at Burghfield under REPPIR19 was the same as the accident which formed the basis for the (then) existing DEPZ under REPPIR01 (determined by the ONR in 2017). The ONR inspectors were therefore able to draw on their knowledge of the AWE 2017 REPPIR01 submission to inform their opinions on the adequacy of the technical basis for the proposed expansion. Based on the meeting discussions, the ONR inspectors did not consider there to be any significant concerns with respect to most aspects of the Burghfield Hazard Evaluation and Consequence Assessment. However, the ONR
inspectors did query AWE's use of infrequent weather conditions in determining the minimum geographical extent for detailed emergency planning.
A follow-up teleconference was held between the ONR and AWE (1st October 2019) to further discuss the weather assumptions applied in view of their significance to the proposed expansion of the DEPZ at Burghfield. A number of more senior individuals attended this teleconference including the ONR Fault Analysis Professional Lead and the AWE Head of Nuclear Safety. The meeting focused on the interpretation of REPPIR19, Schedule 3(3) which requires that "operators consider a range of weather conditions to account for the likely consequences of such conditions and consequences which are less likely, but with greater impact". AWE presented its proposed approach in relation to consideration of Schedule 3(3) noting that the
infrequent weather conditions considered occur 12% of the time at the site and that this was judged by AWE to be sufficiently frequent for consideration in determining the minimum geographical extent for detailed emergency planning. The inspectors concluded that the approach AWE had adopted complied with REPPIR19 and
accorded with the guidance for Schedule 3(3)."
The Secretary of State's evidence about national security
The Claimants' submissions
Submissions on behalf of the Defendant and Interested Parties
The sensitivity of the information in question
The scientific, technical and predictive assessment underpinning the designation of the DEPZ
The specialist expertise of the ONR and PHE
Drawing the threads together
Regulatory oversight of the designation process (Ground 2)
a. general advice and assistance to duty holders under REPPIR 19 during the transition period. This extended to correspondence with the Council on the Burghfield designation; participation in meetings organized by the Council and reviewing its determination. Evidence of the significance of the assistance provided is apparent from the Council's minutes of a meeting on 18 February 2020:
"This meeting underlined the importance of ONR's presence at meetings such as this to provide independent advice and clarification of the legal requirements which will support the duty holder's (West Berks Council) endeavours to achieve compliance within the tight timescales."
b. A detailed review of AWE's recommendation for the DEPZ pursuant to its regulatory tool of 'sampling' by which it selected and reviewed the work of particular operators and local authorities.
c. A wider ongoing regulatory relationship with AWE which it drew upon to inform its assessment of AWE's work.
"Overall, subject to confirmation of the technical adequacy of the consequence analysis by the ONR radiological consequence inspector, I judge that the technical extent of the DEPZ given to the WBCC local authority for the AWE site in the REPPIR 19 submission is a reasonable basis for detailed radiological emergency planning purposes." (ONR (February 2020))
"Based on the information provided by AWE in the Consequence Reports for… Burghfield … and the supplementary information provided by email, PHE believes that West Berkshire Council should consider adopting the recommendations of… implementing the minimum distance of 3160 metres radially for the Burghfield site…" (PHE (January 2020))
The Consequences Report – rationale and provision to the public (Ground 1)
"434. Where an authority fails to give any consideration at all to a matter which it is explicitly required by the SEA Directive to address, such as whether there are reasonable alternatives to the proposed policy, the court may conclude that there has been non-compliance with the Directive. Otherwise, decisions on the inclusion or non-inclusion in the environmental report of information on a particular subject, or the nature or level of detail of that information, or the nature or extent of the analysis carried out, are matters of judgment for the plan-making authority. Where a legal challenge relates to issues of this kind, there is an analogy with judicial review of compliance with a decision-maker's obligation to take reasonable steps to obtain information relevant to his decision, or of his omission to take into account a consideration which is legally relevant but one which he is not required (e.g. by legislation) to take into account ([Secretary of State for Education and Science v Tameside Metropolitan Borough Council AC 1014, at p.1065B]; [CREEDNZ Inc. v Governor-General  N.Z.L.R. 172; [In re Findlay  A.C. 318, at p.334]; [R. (on the application of Hurst) v HM Coroner for Northern District London  UKHL 13;  A.C. 189, at paragraph 57]). The established principle is that the decision-maker's judgment in such circumstances can only be challenged on the grounds of irrationality (see also [R (on the application of Khatun) v Newham London Borough Council  EWCA Civ 55;  QB 37, at paragraph 35]; [R (on the application of France) v Royal London Borough of Kensington and Chelsea  EWCA Civ 429;  1 WLR 3206, at paragraph 103]; and [Flintshire County Council v Jeyes  EWCA Civ 1089;  ELR 416, at paragraph 14])…"
"The question here goes not the principle of an appropriate role for the Court in reviewing compliance with [the SEA Directive]. That principle is of course uncontroversial. We are concerned only with the depth and rigour of the Court enquiry. How intense must it be?
The answer, we think, must be apt to the provisions themselves…"
"66. In Cogent Land LLP v Rochford District Council  EWHC 2542 (Admin);  1 P & CR 2, Singh J held that a defect in the adequacy of an environmental report prepared for the purposes of the SEA Directive may be cured by the production of supplementary material by the plan-making authority, subject to there being consultation on that material (see paras 111-126). He held that articles
4, 6(2) and 8 of the Directive, along with their transposition in the SEA Regulations, are consistent with that conclusion; and that none of the previous authorities on the SEA Directive (which he reviewed) suggested otherwise. He held that SEA is not a single document, still less is it the same thing as the "environmental report". Rather, it is a process, during the course of which an environmental report must be produced (see para 112). The Court of Appeal endorsed this analysis in No Adastral New Town Ltd v Suffolk Coastal District Council  EWCA Civ 88;  Env LR 28, in deciding that SEA failures in the early stages of an authority's preparation of its Core Strategy (a statutory development plan) were capable of being, and were in fact, cured by the steps taken in subsequent stages (see paras 48-54). We agree with this analysis.
67. It follows that strategic environmental assessment may properly involve an iterative process; and that it is permissible for a plan-making authority to introduce alterations to its draft plan subject to complying with the information requirements in article 5 and the consultation requirements in articles 6 and 7."
"Although any administrative decision-maker is under a duty to take all reasonable steps to acquaint himself with information relevant to the decision he is making in order to be able to make a properly informed decision (Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014), the scope and content of that duty is context specific; and it is for the decision-maker (and not the court) to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor (R (Khatun) v London Borough of Newham  EWCA Civ 55;  QB 37 at ). Therefore, a decision … as to the extent to which it considers it necessary to investigate relevant matters is challengeable only on conventional public law grounds."
(R(Jayes) v Flintshire County Council  EWCA Civ 1089 Lindblom LJ said at ; referred to by the Court of Appeal in Plan B at [434 above])
Was the Consequences Report provided as soon as reasonably practicable?
"The meeting was emotionally charged for a number of reasons:
- Two of the councils had only very recent knowledge of the Burghfield site and learning how some of their residents could be affected in an emergency was alarming."
"Member States shall ensure that information in relation to the justification of classes or types of practices, the regulation of radiation sources and of radiation protection is made available to undertakings, workers, members of the public, as well as patients and other individuals subject to medical exposure. This obligation includes ensuring that the competent authority provides information within its fields of competence. Information shall be made available in accordance with national legislation and international obligations, provided that this does not jeopardise other interests such as, inter alia, security, recognised in national legislation or international obligations."
The Claimants' Application for Disclosure
The test for disclosure